Razai & Ors v Secretary of State for the Home Department

A detainee applying for accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999 is entitled to a fair procedure. Where the Secretary of State provisionally considers that immediate accommodation is unsuitable, the applicant must be told that fact and the gist of the reasons, and given a reasonable opportunity to make representations. The First-tier Tribunal’s jurisdiction under the existing section 103 is wider than determining statutory eligibility: it may dismiss an appeal, require reconsideration, or substitute its own decision. Judicial review is not barred where the statutory appeal arises only after a final refusal and cannot address delay or procedural unfairness. Non-publication of a policy is not itself unlawful. Delay must be assessed in the individual circumstances, having regard to reasonable and consistently applied resource constraints.

The claimants were immigration detainees who wished to apply for bail but had no address to offer. They applied to the Secretary of State under section 4(1)(c) of the Immigration and Asylum Act 1999 for accommodation that could serve as a bail address. The Secretary of State’s evolving policy treated some applicants as unsuitable for Initial Accommodation because of criminal convictions, risk assessments or other concerns, resulting in potentially lengthy searches for Dispersal Accommodation.

The claimants challenged the procedure as unfair and unlawful, complained of delay, and argued that the policy was unlawfully unpublished. Two claimants had appealed successfully to the First-tier Tribunal against refusals of accommodation. The central issues were the scope of that statutory appeal, the availability of judicial review, procedural fairness, delay, publication, and alleged discrimination.

1. Judicial review and alternative remedy. The existence of an appeal under section 103 of the Immigration and Asylum Act 1999 did not preclude judicial review. The appeal arose only where the Secretary of State had finally decided not to provide accommodation. It did not address delay or the fairness of the decision-making process.
2. First-tier Tribunal jurisdiction. Until the prospective statutory amendments came into force, the Tribunal’s jurisdiction was not limited to statutory eligibility. It could dismiss the appeal, require reconsideration, or substitute its own decision. It should state expressly which statutory course it was adopting and, where substituting its own decision, what that decision was.
3. Publication. The failure to publish the whole policy was not itself unlawful. The Court of Appeal’s decision in R (WL (Congo)) v SSHD [2010] EWCA Civ 111 established that non-publication alone did not invalidate a policy. An unpublished policy might be unlawful if inconsistent with a published policy, but that was not established here.
4. Fairness. The system operated unfairly. The difference between an offer of Initial Accommodation within days and the potentially lengthy delay where it was considered unsuitable made the provisional decision materially significant. The Secretary of State was required to tell the applicant that Initial Accommodation was not being offered, provide at least the gist of the reasons, and consider representations about that provisional view and any proposed criteria for Dispersal Accommodation. Detention reviews were not an adequate substitute.
5. Delay and risk. Whether delay was unlawful depended on the circumstances of the individual case. The Court made no declaration of unlawful delay. Resource constraints could be relevant where the system was not unreasonable and was applied fairly and consistently. The Secretary of State could have regard to risks to other residents, property owners and persons living near proposed accommodation, and was not required to duplicate controls provided by licensing or other agencies.
6. Discrimination. The intervener required permission to advance a new ground. Permission was refused because the alleged discrimination was not reasonably arguable and no proper comparator group had been shown.

The claims therefore succeeded only to the extent of the findings concerning procedural unfairness. The Court declined to grant declarations concerning unlawful delay and rejected the other principal challenges.